These terms (“Terms”) set forth the agreement between the individual and/or entity identified in the applicable Order (“Client”) and Deloitte Consulting LLP (“Deloitte Consulting”) with respect to Client’s use of the research, analysis, reports or other information specified in the Order that is offered on a subscription basis or via an online store through the Bersin by Deloitte web site currently published at www.Bersin.com(“Site”).
1. Registration, License and Use of the Information.
a) Orders. As set forth in the sales order form entered into between Client and Deloitte Consulting for Client’s membership in the subscription program available on the Site, or as set forth in an order placed by Client, and accepted by Deloitte Consulting, for Information through the online store available on the Site (each an “Order”), Deloitte Consulting will make available to Client the research, analysis, reports or other information set forth in the applicable Order (the “Information”) on the terms and conditions set forth herein. All rights and obligations of Deloitte Consulting and Client hereunder shall be deemed to apply to such Order as if fully set forth therein. Client may issue a purchase order in connection with an Order, but any terms and conditions appearing, on or referenced in, such purchase order shall not apply to or become part of these Terms or such Order regardless of any statement to the contrary in such purchase order and regardless of whether such purchase order is signed by a representative of Deloitte Consulting.
b) License. Subject to Client’s payment to Deloitte Consulting of the fees set forth in the applicable Order, Deloitte Consulting hereby grants to Client on the terms and conditions set forth herein, a limited, non-exclusive and non-transferable license to use the Information solely for Client’s internal business purposes. The foregoing license is limited to use by the Authorized Users as set forth below, and is subject to the additional license restrictions set forth herein and in the Order. If Client has purchased a membership subscription, Client’s use of the Information is also subject to the rights and restrictions applicable to the membership level purchased by Client. To the extent that any of the Information provided to Client hereunder constitutes inventory within the meaning of Section 471 of the Internal Revenue Code, such Information is licensed to Client by Deloitte Consulting as agent for Deloitte Consulting Product Services LLC on the terms and conditions contained herein. Client agrees that any data provided by Authorized Users may be used by Deloitte Consulting in connection with the Site and any other services offered by Deloitte Consulting. Client further agrees that any such data may be disclosed by Deloitte Consulting to third parties in connection with such services, provided that such data does not contain any Client-identifiable information.
c) Authorized Users. The Information (i) is available only for the number of users identified and described in the applicable Order (“Authorized Users”); (ii) is licensed only for each Authorized User’s individual use unless expressly permitted in the Order; and (iii) may not be shared with other persons or entities, either internally or externally, unless expressly permitted in the Order. An Authorized User is an individual who is authorized to access the Information during the term specified in the applicable Order, either online or after the Information has been downloaded, and who has been supplied a unique user identification and password by Deloitte Consulting or Client to access the Information on the Site (“Authorized User login”). Authorized User licenses cannot be shared or used by more than one individual Authorized User but may be reassigned from time to time to new Authorized Users who are replacing former Authorized Users who have terminated employment or otherwise changed job status or function and no longer use the Information. Client is responsible for all activities conducted under its Authorized Users logins and for Authorized Users’ compliance with these Terms. Client is responsible for maintaining the security of its account and passwords to prevent and restrict the access and use of the Information from unauthorized individuals. Client agrees to notify Deloitte Consulting immediately of any unauthorized use of any password or account or any other known or suspected breach.
d) Restrictions. The Information is licensed for Client’s internal use only and only for the term of the applicable Order. The Information may in no event be accessed or used in any manner by individuals employed by or working for research analyst firms, industry analyst firms or benchmarking consulting firms, or after the expiration or termination hereof. Except as expressly permitted under these Terms, Client will not (i) provide Information to any entity or individual who is not an Authorized User, whether directly in any media or indirectly through incorporation in a database, report or otherwise, unless expressly permitted in the Order; (ii) use or permit the use of Information to generate any statistical or other information that is or will be provided to third parties; (iii) use or permit the use of Information to prepare any comparison to other information databases that is or will be provided to third parties; (iv) use any information to engage in any unfair or deceptive practices; (v) perform any systematic access or extraction of content from the Information; (vi) rearrange or modify the Information to create abstracts from, or scrape or display Information for use on a web site; (vii) abridge or create any derivative work based upon the Information; or (viii) sell or otherwise transfer any Information or use thereof for any commercial purpose.
e) Access Restrictions. Deloitte Consulting reserves the right to limit access to the Information to (i) viewing only, or (ii) downloading a maximum number of reports.
f) Distribution Rights. All Information purchased or made available to Client are licensed to each Authorized User only. Client may purchase distribution rights that allow internal distribution of Information in accordance with the membership level purchased by Client and/or as set forth in the applicable Order (“Internal Distribution Rights”). Client agrees to include on all Information it distributes pursuant to its applicable Distribution Rights all copyright and other proprietary rights notices in the same form in which the notices appear in the Information on the Site, original source attribution and the phrase “Used with permission from Deloitte Consulting LLP”. In no event may Client distribute the Information outside of Client’s organization. Unless an Order specifies that Client has purchased Internal Distribution Rights, each Authorized User may not publish, distribute, retransmit, reproduce, duplicate, copy, sell, resell or exploit any portion of the Information or otherwise provide access to the Information received through the Site to anyone without the express written consent of Deloitte Consulting.
g) Monitoring and Audit Rights. Deloitte Consulting reserves the right to monitor Client’s use of the Information to ensure compliance with these Terms and prevent fraudulent use. Such monitoring may include but is not limited to determining whether the Information is accessed under the account from multiple computers, noting downloads, and noting a disproportionate number of users. If such monitoring indicates Client is not in compliance with these Terms or if fraudulent activity is suspected, Deloitte Consulting reserves the right to take such action as it deems necessary, including, but not limited to, suspension or termination of the account and/or membership. Deloitte Consulting reserves the right to, at any time, audit Client’s use of the Information to ensure it is being used in accordance with the terms hereof. Deloitte Consulting may deny access to any and all users in excess of the number of Authorized Users specified in the applicable Order.
2. Payment of Invoices. Client will compensate Deloitte Consulting as set forth in the applicable Order. Unless otherwise stated therein, subscription fees stated in an Order shall be effective during the initial subscription term specified in that Order. All subscription fees are due and payable to Deloitte Consulting at the beginning of Client’s subscription period. Deloitte Consulting’s invoices shall be due within the time period set forth in the Order, and if no such time period is set forth therein than within thirty (30) days from receipt of an invoice (in either case, the “Payment Period”). If payment is not received within the Payment Period (i) such invoice shall accrue a late charge equal to the lesser of (a) 1½% per month or (b) the highest rate allowable by law, in each case compounded monthly to the extent allowable by law, and (ii) Deloitte Consulting may also terminate the Order upon ten (10) days notice to Client. Client shall be responsible for any taxes imposed in connection with the Order, other than taxes imposed by employment withholding for Deloitte Consulting’s personnel or on Deloitte Consulting’s income or property.
3. Term and Termination. Unless sooner terminated as set forth below, these Terms shall continue until all subscription licenses granted hereunder have expired or have been terminated. Either party may terminate an Order for the other party’s material breach by giving thirty (30) days prior written notice to the other party, provided that the other party shall have the right to cure the breach within the notice period. Either party may terminate an Order for convenience upon thirty (30) days prior written notice to the other party; provided, however, that if Client terminates an Order for convenience prior to the expiration of the applicable subscription term, Client will not be entitled to a refund of any fees paid for such term. Deloitte Consulting may terminate an Order or any part thereof upon written notice to Client if Deloitte Consulting determines that the performance of any part of the Order would be in conflict with law, or independence or professional rules; provided that Deloitte Consulting shall refund the Client a pro-rata portion of the subscription fees paid by Client thereunder.
4. Client Responsibilities. Client shall be solely responsible for, among other things, the performance of its Authorized Users, personnel and agents, and the accuracy and completeness of all data and information provided to Deloitte Consulting for purposes of performance hereunder, and maintaining all software, hardware, and other equipment used by Client to access and use the Site.
5. Restrictions on Use.
a) The Information shall be solely for Client’s benefit, and is not intended to be relied upon by any person or entity other than Client. Client shall not disclose the Information, or refer to the Information in any communication, to any person or entity except to Authorized Users, provided that such Authorized Users comply with the restrictions on use and disclosure set forth herein and provided further that Client shall be responsible for any non-compliance by any Authorized User with such restrictions.
b) Client shall not use or permit third parties to use the Information or the Site in any way that (i) is fraudulent or violates applicable law, rule or regulation; (ii) interferes with or disrupts other network users, network services, or network equipment, including, but not limited to, spamming; (iii) results in the introduction of computer worms or viruses; (iv) involves the use of false identities; or (v) attempts to gain unauthorized entry to any servers or databases through which the Information is provided.
c) The Information and Site embody valuable copyright, patent, trademark, trade secret, and other valuable intellectual property rights owned or licensed by Deloitte Consulting. Deloitte Consulting or its licensors retain all right, title, or interest in all such proprietary rights or property, and Client shall have no interest in any such rights or property, nor will anything contained herein constitute a license or grant of any rights to Client with respect to any copyright, patent, trademark, trade secret or any other intellectual property right other than as specifically provided in Section 1 of these Terms.
6. Confidentiality. To the extent that, in connection with an Order, either Deloitte Consulting or Client (each, the “receiving party”) comes into possession of any confidential information of the other (the “disclosing party”), it will not disclose such information to any third party without the disclosing party’s consent, using at least the same degree of care as it employs in maintaining in confidence its own confidential information of a similar nature, but in no event less than a reasonable degree of care. The disclosing party hereby consents to the receiving party disclosing such information (i) as expressly set forth in the Order, (ii) to contractors providing administrative, infrastructure and other support services to the receiving party and subcontractors providing services in connection with this Order, in each case, whether located within or outside of the United States, provided that such contractors and subcontractors have agreed to be bound by confidentiality obligations similar to those in this Section, (iii) as may be required by law or regulation, or to respond to governmental inquiries, or in accordance with applicable professional standards or rules, or in connection with litigation pertaining to the Order, or (iv) to the extent such information (A) is or becomes publicly available other than as the result of a disclosure in breach hereof, (B) becomes available to the receiving party on a nonconfidential basis from a source which the receiving party believes is not prohibited from disclosing such information, (C) is already known by the receiving party without any obligation of confidentiality with respect thereto, or (D) is developed by the receiving party independent of any disclosures of such information to the receiving party. In addition, if Client is an attest client of any affiliate or related entity of Deloitte Consulting, any such information may be disclosed to such affiliate or related entity of Deloitte Consulting in the context of its professional obligations as the independent accountant for Client.
7. Limitation on Warranties and Actions.
a) Deloitte Consulting represents and warrants that it has the right to grant the license to the information as set forth HEREIN. DELOITTE CONSULTING DOES NOT GUARANTEE CONTINUOUS OR UNINTERRUPTED ACCESS TO THE SITE OR THE INFORMATION. THE INFORMATION IS PROVIDED ON AN “AS-IS” BASIS AND DELOITTE CONSULTING DOES NOT WARRANT THAT THE INFORMATION WILL BE ERROR-FREE, ACCURATE OR RELIABLE. DELOITTE CONSULTING EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
b) No action, regardless of form, arising under or relating to an Order may be brought more than one year after the cause of action has accrued, except that an action for nonpayment may be brought not later than one year following the due date of the last payment owing to the party bringing the action.
a) Client shall indemnify and hold harmless Deloitte Consulting, its contractors and their respective personnel from all claims, liabilities or expenses attributable to claims of third parties relating to Client’s use or disclosure of the Information.
b) Deloitte Consulting agrees to indemnify, defend and hold harmless Client and its personnel from all claims, liabilities or expenses attributable to claims of third parties for infringement by the Information of any U.S. patent existing as of the date of the applicable Order or copyright or any unauthorized use of any trade secret, except to the extent that such infringement or unauthorized use arises from, or could have been avoided except for (i) modification of the Information other than by Deloitte Consulting or its contractors, or use thereof in a manner not contemplated or permitted by these Terms, (ii) the failure of the indemnified party to use any corrections or modifications made available by Deloitte Consulting, (iii) information, materials, instructions, specifications, requirements or designs provided by or on behalf of the indemnified party, or (iv) the use of the Information in combination with any item not provided by Deloitte Consulting. If Client’s use of any such Information, or any portion thereof, is or is likely to be enjoined by order of a court of competent jurisdiction as such an infringement or unauthorized use, Deloitte Consulting, at its option and expense, shall have the right to (y) procure for Client the continued use of such Information, (z) replace or modify such Information with a non-infringing item. In the event Deloitte Consulting cannot reasonably procure, replace or modify such Deliverable in accordance with the immediately preceding sentence, Deloitte Consulting may require Client to cease use of such Information and refund the Client a pro-rata portion of the fee paid by Client hereunder for the affected Information. The foregoing provisions of this paragraph constitute the sole and exclusive remedy of the indemnified parties, and the sole and exclusive obligation of Deloitte Consulting, relating to a claim that any Information infringes any patent, copyright or other intellectual property right of a third party.
c) As a condition to the indemnity obligations contained herein, the indemnified party shall provide the indemnifying party with prompt notice of any claim for which indemnification shall be sought hereunder and shall cooperate in all reasonable respects with the indemnifying party in connection with any such claim. The indemnifying party shall be entitled to control the handling of any such claim and to defend or settle any such claim, in its sole discretion, with counsel of its own choosing.
9. Limitation on Damages. Neither party, its contractors, or their respective personnel shall be liable to for any claims, liabilities, or expenses relating to an Order (“Claims”) for an aggregate amount in excess of the fees paid by Client to Deloitte Consulting under such Order over the 12-month period immediately preceding the date on which the initial act or omission giving rise to the liability first occurs, except that the foregoing will not limit amounts owing by Client to Deloitte Consulting for the fees thereunder. In no event shall either party, its contractors, or their respective personnel be liable for any loss of use, data, goodwill, revenues or profits (whether or not deemed to constitute a direct Claim), or any consequential, special, indirect, incidental, punitive, or exemplary loss, damage, or expense relating to any Order. The provisions of this Section 9 shall not apply to any Claim for which one party has an express obligation to indemnify the other under Section 8, to a breach of the license restrictions set forth herein, or to the extent resulting from a party’s bad faith or intentional misconduct. In circumstances where any limitation on damages or indemnification provision hereunder is unavailable, the aggregate liability of each party, its contractors, and their respective personnel for any Claim shall not exceed an amount that is proportional to the relative fault that their conduct bears to all other conduct giving rise to such Claim.
10. Force Majeure. Deloitte Consulting shall not be liable for any delays or nonperformance directly or indirectly resulting from circumstances or causes beyond its reasonable control, including, fire, epidemic or other casualty; act of God; strike or labor dispute; war or other violence; or any law, order, or requirement of any governmental agency or authority.
11. Waiver of Jury Trial. THE PARTIES HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM RELATING TO ANY ORDER, THESE TERMS, OR THE INFORMATION.
12. Independent Contractor. Each of Deloitte Consulting and Client is an independent contractor and neither party is, nor shall be considered to be, nor shall purport to act as, the other’s agent, partner, fiduciary, joint venturer, or representative.
13. Survival and Interpretation. All provisions which are intended by their nature to survive the performance under an Order shall survive such performance, or the expiration or termination thereof. In the event of any conflict or ambiguity between these Terms and any Order, these Terms shall govern and control. Each provision of these Terms shall apply to the fullest extent of the law, whether in contract, statute, tort (such as negligence) or otherwise, notwithstanding the failure of the essential purpose of any remedy. Any references herein to the term “including” shall be deemed to be followed by “without limitation.”
14. Binding Nature, Assignment, and Contracting. These Terms shall be binding on the respective parties thereto and their respective permitted successors and assigns; provided, however, that, except as provided below, neither party may assign any of its rights or obligations under these Terms (including, without limitation, interests or claims relating hereto) without the prior written consent of the other party. Notwithstanding the foregoing, either party may assign an Order to any affiliate or subsidiary without consent but upon prior notice to the other party, and Deloitte Consulting may assign or contract any of its obligations under an Order to any third party, including its affiliates and related entities, whether located within or outside of the United States.
15. Notices. Whenever under an Order notice is required or permitted to be given, such notice shall be in writing and effective upon receipt. All notices shall be hand delivered, sent by a reputable commercial overnight courier, or mailed by registered or certified United States mail, return receipt requested, postage prepaid, and addressed to Deloitte Consulting at 180 Grand Avenue, Oakland, CA 94612, and to Client at its address set forth in the applicable Order. A party may change its address for notice by giving prior written notice of the new address in conformity with the foregoing and the date upon which such new address will become effective.
16. Entire Agreement. These Terms, together with its attachments, constitutes the entire agreement with respect to the subject matter hereof and supersedes all other oral or written representations, understandings, or agreements relating to the subject matter hereof.
17. Severability. If any provision of these Terms is found unenforceable, such provision shall not affect the other provisions, but such unenforceable provision shall be deemed modified to the extent necessary to render it enforceable, preserving to the fullest extent permitted the intent of Deloitte Consulting and Client set forth herein.
18. Waivers and Amendments. No delay or omission by Deloitte Consulting or Client in enforcing its rights or remedies under these Terms shall impair such right or remedy or be deemed to be a waiver thereof. No waiver of any right or remedy under these Terms with respect to any occurrence or event on one occasion shall be deemed a waiver of such right or remedy with respect to such occurrence or event on any other occasion. No amendment or waiver of these Terms shall be valid unless in writing and signed by the parties thereto.
19. Governing Law; Jurisdiction and Venue. Each Order, these Terms, and all matters relating thereto and hereto shall be governed by, and construed in accordance with, the laws of the State of New York (without giving effect to the choice of law principles thereof). Any action based on or arising out of these Terms or any Order shall be brought and maintained exclusively in any state or federal court, in each case located in New York County, the State of New York. Client and Deloitte Consulting hereby expressly and irrevocably submit to the jurisdiction of such courts for the purposes of any such action and expressly and irrevocably waive, to the fullest extent permitted by law, any objection which it may have or hereafter may have to the laying of venue of any such action brought in any such court and any claim that any such action has been brought in an inconvenient forum.